IN  THE  SUPREME  COURT 

OF  THE  UNITED  STATES. 


GEORGE  C.  BATES, 

vs. 
THE  ILLINOIS  CENTRAL  RAIL  ROAD  COMPANY. 


The  facts  of  this  case  are  very  briefly  as  follows :  Kobert 
Kinzee,  under  the  act  of  Congress  of  May  29, 1830,  and  the 
subsequent  amendment  of  the  same,  claimed  as  pre-emptor 
the  north  fraction  of  section  ten,  on  town  39,  north  of  range 
fourteen  east,  being  part  of  what  is  now  Chicago.  At  that 
time  there  was  a  sand  bar  stretching  across  the  mouth  of  tho 
Chicago  river  which  bounded  the  harbor  on  the  south.  This 
sand  bar  was  the  result  of  a  current  on  the  westerly  coast  of 
Lake  Michigan  from  the  north  southward,  coming  in  contact 
with  the  river  current  coming  into  the  lake.  The  lake  cur- 
rent being  the  largest  in  volume  and  the  most  powerful,  pre- 
vailed, and  sweeping  the  river  current  southward,  but  in 
some  measure  slackening  the  lake  current  arid  creating  some 
eddy,  caused  a  deposit  of  sand,  which  stretching  down  the 
shore  formed  a  bar,  which  was  a  narrow  strip  of  sand  stretch- 
ing southward  from  the  north  fraction  claimed  by  Kinzee, 
outside  of  the  current  of  the  river  along  the  whole  lake  front 
of  the  south  fraction  of  the  same  section,  and  along  the 


lake  front  of  the  next  section,  south  of  that  sometimes  a  mile, 
sometimes  a  mile  and  a  half,  and  sometimes  only  three- 
fourths  of  a  mile,  depending  upon  the  winds  and  currents 
and  freshets  which  might  take  place  in  the  Chicago  river, — 
sometimes  lengthening  it  out,  sometimes  cutting  it  off,  and 
always  more  or  less  aifecting  its  length  southward,  and  to 
some  extent  its  dimensions  in  other  respects.  The  diagram 
will  give  an  idea  of  the  position  and  nature  and  character 
of  the  bar  and  its  form. 

At  the  time  of  the  survey  by  the  Government  surveyors 
in  1820  or  1821,  the  river  ran  directly  out  straight  into  the 
lake  in  an  easterly  instead  of  a  southerly  course.  At  that 
time  the  ingress  and  egress  for  boats  into  and  out  of  the  river 
was  at  the  point,  and  which  in  the  government  survey  was  de- 
signated as  the  mouth  of  the  river.  At  that  point  is  the  call 
mentioned  in  the  government  survey  as  the  mouth  of  the 
river,  and  at  that  point  was  the  then  actual  mouth  of  the 
river,  through  which  its  waters  passed  into  the  lake.  It  so 
remained  during  that  season  until  fall  or  winter,  when  the 
downward  current  of  the  lake,  carrying  with  it  ice  and  drift- 
ing sand,  filled  it  up  ;  but  in  the  spring  when  the  freshet  of 
the  river  came  down  it  cut  through  the  bank  there  again,  and 
continued  to  pass  out  there  during  the  next  season,  when  the 
same  causes  again  filled  it  up.  It  was  probably  opened  in 
the  spring  of  1820  or  1821,  the  year  of  the  survey — when 
the  river  was  high,  by  shoveling  out  a  small  trench  on  the 
top  of  the  bar,  across  it,  so  as  to  enable  a  small  current 
to  run  across,  which  in  a  few  hours  cut  it  out  to  such 
width  and  depth,  that  the  whole  current  of  the  river  found 
its  outlet  there.  The  same  thing  had  been  done  in  1811, 
and  again  in  1816,  and  again  once  or  twice  afterwards,  but 
certainly  once  in  1829.  When  this  was  done  the  result  was 
that  sometimes  the  downward  current  of  the  lake  acting  upon 
the  current  of  the  river,  and  forcing  it  southward,  would  wear 
away  the  sand  bar  south,  and  by  the  same  process  add  to  the 


north  side,  until  the  bed  of  the  river  should  have  passed 
over  and  worn  away  the  entire  sand  bar  gradually,  and  as 
gradually  formed  a  new  one  by  accretion  or  deposit  of  sands 
on  the  north  side.  The  result  was  the  old  sand  bar  entirely 
wearing  away,  and  an  entirely  new  one  forming,  but  the 
causes  being  always  the  same,  invariably  in  the  same  posi- 
tion. This  is  a  sketch  of  the  history  of  the  bar,  but  it  is  ma- 
terial as  showing  where  and  what  was  the  actual  mouth  of 
the  river  at  the  time  of  the  government  survey,  and  as  show- 
ing that  that  actual  mouth,  and  the  call  made  by  the  govern- 
ment survey,  and  designated  by  the  style  of,  and  as  the 
mouth  of  the  river,  was  at  that  time  its  actual  mouth.  In 
other  words,  that  the  call  in  the  survey  designated  as  the 
mouth,  and  the  location  of  the  mouth,  or  the  position  of  the 
mouth  on  the  land  or  earth,  were  the  same.  There  was 
therefore  no  discrepancy  between  the  survey  and  the  monu- 
ments called  for  in  the  survey. 

A  material  question  arises  here  on  this  point,  which  in  itself 
may  be  decisive  of  the  whole  case.  What  was  the  southern 
boundary  of  the  north  fraction  at  the  time  of  the  govern- 
ment survey,  and  as  fixed  by  the  courses  and  distances,  and 
actual  monuments  called  for  by  that  survey.  Was  it  the 
river  as  it  then  actually  was,— as  it  it  is  described  in  the  sur- 
vey,— or  was  it  the  river  as  it  ran  at  other  times  and  in  other 
years,  outleting  three-fourths  of  a  mile,  a  mile,  or  a  mile 
and  a  half  below,  according  to  the  circumstances  ?  If  it  was 
the  river  as  it  then  was  emptying,  and  as  the  survey  lixed  it 
then,  all  that  was  gained  to  the  north  fraction  was  what  was 
added  to  it  by  accretion  subsequently,  under  the  well  known 
law  relative  to  accretions.  If  the  river,  as  it  then  was,  was 
the  southern  boundary,  and  we  think  it  must  be  so  beyond 
controversy,  then  the  sand  bar  south  of  it  belonged  to,  and 
was  a  part  of  the  south  fraction  of  section  ten,  because  the 
survey  of  that  fraction  bounds  the  east  side  of  it  by  the  Lake 
Michigan,  and  the  courses  and  distances  running  from  its 


4 

south-east  corner  on  Lake  Michigan,  call  for  the  lake  shore 
all  the  way  up  as  its  eastern  boundary,  being  a  distance  of 
half  a  mile,  until  they  reach  the  part  then  designated  as,  and 
what  was  actually,  the  mouth  of  the  river,  and  the  call  or 
natural  monument  then  being  the  lake,  of  course  carried  the 
south  fraction  to  the  lake,  and  included  within  it  all  the  land, 
sand  bars,  and  shore,  south  of  the  then  mouth  of  the  river,  to 
the  lake.  If  this  be  so,  then  the  locality  of  the  sand  bar  was 
in  the  south  fraction.  It  might  be  worn  away  by  the  gradual 
action  of  the  waters,  and  the  title  to  it  lost  to  the  owners  of 
the  south  fraction,  and  it  might,  after  having  gradually 
worn  away,  be  added  to  the  north  fraction  by  the  gradual  for- 
mation of  land  added  to  it  by  accretion,  which  accretion 
would  gradually  extend  over  the  place  where  the  sand  bar 
formerly  was,  and  thus  add  that  locality  to  the  north  fraction. 

It  will  be  observed,  however,  that  though  the  river  ran 
out  there  then,  and  for  two  years,  and  though  it  was  then 
beyond  a  doubt  the  actual  mouth  of  the  river  at  that  place, 
so  recognized  and  designated  by  the  surveyors  as  the  monu- 
ment which  bounded  the  north  fraction  on  the  south,  and 
thus  locating  the  whole  situs  of  the  sand  bar  south  of  it  in 
the  south  fraction,  yet  some  time  anterior,  human  agency 
had  co-operated  with  the  current  of  the  river  to  turn  its 
waters  out  there  and  form  that  channel;  that  the  channel 
having  been  formed  there,  in  some  degree,  by  human  agency 
co-operating  with  the  force  of  the  waters,  it  was  to  some 
extent,  at  least,  an  artificial  channel,  and  it  was  in  conse- 
quence of  the  waters  running  out  there  where  the  downward 
current  of  the  lake  would  not  permit  them  to  remain,  but  kept 
crowding  them  southward,  that  the  sand  bar  south  was  gradu- 
ally washed  away  and  a  new  one  formed  from  the  north, 
gradually  stretching  over  the  same  locality,  and  thus  adding 
to  the  north  fraction  the  locus  in  quo  which  had  formerly  be- 
longed to  the  south  fraction. 

These  reflections   become    material  in    the   view  Judge 


McLean  took    of  this    question.     He  holds,  that    because 
Kinzee,  or  his  grantee,  could  designate  the  situs  of  the  sand 
bar  and  its  extent,  that,  therefore,  the  title  could  not  be  lost 
to  it  by  the  gradual  action  of  waters  wearing  it  away  gradu- 
ally and  imperceptibly.     He  holds,  also,  that  when  human 
agency  and  artificial  means  have  co-operated  with  the  cur- 
rent to  wear  away  the  soil,  the  title  cannot  be  lost.    Though 
we  do  not  agree  with  him  on  these  points,  as  will  be  here- 
after seen,  yet  upon  his  principles  the  title  to  the  locus  in  quo 
could  never  have  been  transferred  from  the  owner  of  the 
south  fraction  to  the  owner  of  the  north  fraction.    The  cur- 
rent which  wore  away  the  south  fraction  was  not  the  natural 
current,  but  was  a  current  or  channel  formed  there  to  some 
extent  by  artificial   means.    The  testimony  showed,  that  if 
the  sand  bar  washed  away  twenty  times,  it  would  reform  ex- 
actly in  the  same  position,  the  causes  being  the  same  and 
acting  in  the  same  way.    The  site  of  the  old  sand  bar  could 
therefore  be  determined  as  exactly  as  that  of  the  new  one. 
According  to  Judge  McLean,  therefore,  it  could  not  by  decre- 
tion  or  accretion  be  transferred,  so  far  as  title  and  legal  right 
is  concerned,  from  the  south  fraction  to  the  north  fraction  by 
the  action  of  the  river  and  lake,  as  the  testimony  shews  them 
to  have  operated.     If  his  positions  be  true,  therefore  the  title 
was  always  with  the  owners  of  the  south  fraction,  and,  as  the 
defendants  own  all  the  lake  shore  of  the  south  fraction,  is  in 
them. 

Again,  upon  any  view  we  take  of  this  case,  we  think  this 
sand  bar  has  never  been  included  in  the  north  fraction,  even 
though  the  river  had  not  ran  straight  into  the  lake  when  it 

O  O 

was  fixed  and  designated  as  the  monument  which  bounded 
the  north  fraction  on  the  south.  In  its  more  ordinary  and 
natural  position  this  sand  bar  stretched  south  of  the  north 
fraction  from  three-fourths  of  a  mile  to  mile  and  a  half,  ex- 
tending far  south  of  the  whole  section,  and  lay  outside  of 
the  main  shore  of  the  south  fraction  and  between  it  and  the 
2 


waters  of  the  lake,  and  with  the  water  of  the  river  between 
it  and  the  main  shore.  Now  the  courses  and  distances  call 
for  the  lake  as  the  eastern  boundary  of  the  south  fraction. 
They  commence  on  the  south-east  corner  on  the  shore  of  lake 
Michigan  and  run  thence  north  on  said  shore  of  the  lake  un- 
til it  reaches  the  point  designated  as  the  mouth  of  the  river, 
thence  across  the  said  mouth  to  the  north  shore,  thence  along 
the  lake  shore  north  till  it  reaches  the  northerly  line  of  the 
section.  Now,  upon  the  supposition  that  the  said  sand  bar 
was  then  there,  and  the  water  did  not  run  out  where  the  call 
makes  it  to  have  done,  but  to  have  run  out  a  mile  below, 
we  have  a  discrepancy  between  the  courses  and  distances, 
and  calls  or  monuments,  called  for  by  the  surveyors,  and  the 
natural  monuments  as  they  existed.  There  was  no  lake  shore 
on  the  east  side  of  the  south  fraction  at  all,  but  a  liver  and 
sand  bar  between  it  and  the  lake.  The  mouth  of  the  river, 
instead  of  being  where  the  courses  and  distances  and  calls 
fix  it,  was  a  mile,  or  a  mile  and  a  half,  south  of  that  point, 
and  the  discrepancy  is  such  in  the  circumstances,  that  it  is 
impossible  to  ascribe  it  to  error  in  admeasurements  in 
courses,  or  calls.  The  survey  is  as  the  surveyors  intended, 
and  is  without  error,  and  the  question  is,  what  is  to  govern 
the  boundaries  of  the  north  fraction  according  to  the  govern- 
ment survey.  What  was  the  southern  boundary  of  the  north 
fraction?  "Was  it  the  line  designated  by  the  courses  and  dis- 
tances and  calls  of  the  surveys,  or  are  all  these  to  be  thrown 
away  and  the  southern  extremity  of  the  fraction  to  be  brought 
a  mile  and  a  half  south,  because  one  of  the  calls  is  the  mouth 
of  the  river,  which  ordinarily  was  at  the  southern  extremity  of 
this  bar,  sometimes  longer  and  sometimes  shorter  ?  It  is  a  case 
of  a  discrepancy  between  the  locus  of  the  call  and  that  fixed  by 
courses  and  distances.  And  the  question  is,  to  ascertain  the 
intention  of  the  surveyors  and  what  they  intended  to  fix  as 
the  south  boundary,  because  it  is  by  their  survey  that  the 
government  grants. 


There  are  certain  rules  established  to  control,  or  rather  to 
enable  the  court  to  arrive  at  the  meaning  of  words  used  in  a 
deed  or  conveyance  of  lands.  Sometimes  the  number  of 
acres  mentioned  will  be  resorted  to  to  control  a  given  course, 
sometimes  a  given  course  will  give  way  to  and  be  controled 
by  distance,  and  distance  will  give  way  to  be  controled 
by  the  calls  or  monuments  upon  the  land,  and  especial- 
ly if  it  be  a  natural  monument,  as  a  tree,  a  water  course, 
or  lake,  the  rule  being,  that  when  all  the  words  of  description 
do  not  agree  with  each  other,  but  some  are  repugnant  to  the 
rest,  those  shall  be  retained  where  there  is  less  liability  to  er- 
ror, and  those  rejected  where  men  are  most  liable  to  make 
mistakes.  But  all  these  maxims  and  rules  are  laid  down  to 
be  followed  only  as  the  most  certain  rules  and  maxims,  by 
which  the  intention  of  the  deed  can  be  ascertained.  There- 
fore, it  is  that  in  some  sets  of  circumstances  the  courses  will 
give  way,  in  others  acres,  in  others  distances,  in  others  calls 
or  natural  monuments.  Sometimes  one  of  these  elements,  in 
combination  with  other  facts,  furnishing  more  certainty  to 
the  mind  than  others,  or  even  all  the  others.  For  authorities 
bearing  upon  this  point  see  the  following  cases. 

19  Pick.,  466. 
6  Cowen.717,  281. 

3  How.  U.  S.,  193. 

4  Wend.,  313. 
17  Mass.,  210. 
14  Barbour,  438. 

8  N.  H..  404. 
19  Johns.,  449. 

32  Maine,  80.  ,.. 

9  How.,  4H5. 

10  Ohio.  316. 

4  Wheaton,  447. 

2  Wheaton,  316. 

3  Pick..  277. 

11  Conn..  332. 

13  Wendell.  303-5. 

8  Wend.,  190. 

9  Yerger,  55. 
2  Spear.,  628. 


8 

These  cases  present  a  great  variety  of  examples,  those  in 
New  York  and  Massachusetts  especially,  where  every  ele- 
ment of  description  has  been  rejected  which  has  been  usu- 
ally denominated  the  most  certain,  because  others  combined 
with  circumstances  in  these  particular  cases  became  more 
certain.  The  case  in  17  Mass,  is  a  very  remarkable  one, 
where  calls  became  less  certain  than  distance,  and  gave  way 
to  it.  The  whole  go  to  show  that  there  is  no  certain  rule,  but 
that  in  each  case  those  elements,  which  in  that  case  furnisli 
the  most  conclusive  convictions  upon  the  mind,  of  the 
boundaries  intended,  will  prevail,  and  all  other  repugnant 
elements  will  give  way  before  them. 

Apply  the  principles  to  this  case,  and  there  can  be  no 
doubt  that  the  courses  and  distances  must  govern  here  so  far 
as  to  fix  the  south  boundary  of  the  north  fraction.  The  fact 
that  those  courses  and  distances  and  calls,  for  natural  bound- 
ary of  lake  on  south  fraction,  show  that  there  could  be  no 
error  in  course  and  distance,  because  they  arc  each  of  them 
fortified  by  the  great  natural  boundary  with  which  they  agree 
and  correspond.  There  can  be  no  error  here  on  south  frac- 
tion,— it  has  the  lake  on  the  east  for  half  a  mile  in  the  direc- 
tion of  the  courses  and  distances, — at  the  end  of  half  a  mile 
those  courses  strike  the  river  and  cross  it,  whether  that  were 
the  mouth  or  not.  So  far  everthing  agrees.  Thence  it  crosses 
and  goes  on  the  north  side  following  the  lake  shore  up.  Un- 
less the  courses  and  distances  are  to  govern,  then  there  can 
have  been  no  survey  of  the  east  side  of  the  whole  section. 
The  mouth  of  the  river  may  have  been  misnamed,  but  there 
can  be  no  doubt  where  the  point  was.  The  object  called  the 
mouth  was  where  the  Jacob's  staff  was  set.  This  is  beyond  all 
controversy.  That  was  the  point  by  them  called  the  mouth 
of  the  river,  and  intended,  both  by  them  and  the  govern- 
ment, as  the  southern  boundary  of  the  north  fraction.  The 
sand  bar  was  considered  not  as  being  on  the  north  side  of  the 
river,  and  except  where  it  lay  across  the  raoutli-of  the  river 


9 

was  on  the  south  fraction,  and  a  part  of  it.    This  is  very  ap- 
parent 

Now,  should  any  construction  be  put  upon  this  grant  made 
upon  this  survey,  which  should  not  only  defeat  the  manifest 
intent  of  it,  but  should  destroy  the  whole  survey,  and  now 
after  thirty  years  transfer  $2,000,000  of  property  from  the 
south  fraction  to  the  north  fraction,  from  the  owners  of  one 
to  the  owner  of  the  other  ? 

I  am  aware  that  by  the  general  principles  of  law  a  bound- 
ary by  a  water  course  generally — although  the  courses  and 
distances  would  not  carry  the  boundary  to  the  water — will 
prevail,  and  the  courses  and  distances  will  give  way  to  it. 
This  is  the  general  rule  as  above  described,  because  that  is 
the  presumed  intention.  It  is  the  same  with  the  general 
rule  that  where  land  is  conveyed  bounding  on  a  fresh  river, 
the  title  passes  to  the  middle  of  the  river.  But  in  such  case, 
where  there  are  circumstances  or  words  to  do  away  with  this 
presumption  and  rebut  it,  and  showing  a  contrary  intent,  a 
contrary  rule  prevails.  And  so  in  this  case  we  think  that 
the  south  boundary  of  the  north  fraction  was  and  is  at  the 
point  where  the  courses  and  distances  establish  it. 

But,  passing  from  this,  in  1830  the  pre-emptor  entered  the 
land  and  paid  his  money  for  it.  He  did  so  in  a  land  office 
having  no  jurisdiction,  and  secured  no  title.  It  was  entered 
at  Palestine  7th  May,  1831.  Chicago  had  been  set  off  from 
that  land  district  February  19, 1831,  three  months  before. 
He  got  no  patent.  In  June,  1836,  the  land  office  at  Wash- 
ington decided  his  entry  to  be  void.  Hall's  opinions  of 

Altornies  General,  vol.  3,  131. 
13  1'eterg,  511. 
7  Wheat.,  210. 

5  Branch.,  92. 

6  Peters,  676. 

2  How..  284,  318. 


But  in  July,  1836,  an  act  passed  by  Congress  confirming 
3 


10 

these  entries  and  authorizing  patents  to  issue  upon  them. 
Under  that  act,  in  March,  1837,  a  patent  issued  to  Kinzee  of 
the  north  fraction,  according  to  the  map  or  plan  in  the  Sur- 
veyor GeneraFs  office  of  said  fraction. 

Some  questions  arose  upon  this,  as  to  the  time  when  the 
title  passed  and  the  pre-emptor  became  owner.  Does  the 
confirmation  relate  back  to  the  entry  of  May  7, 1831,  or  to 
the  time  of  the  act  of  Congress?  I  do  not  discuss  this  point, 
but  the  following  authorities  bear  upon  it: 

Jacob's  Dictionary. 

Title  Confirmation,  8  How.,  293. 

4  How.,  463. 
2  How.,  319. 
8  Cow.,  285. 

5  Cruise,  275. 
16  Johns,  110. 
13  Peters,  514. 

Coke  Lit.,  609. 


At  the  time  of  the  passage  of  this  act  of  Congress,  the 
Government  of  the  Union  had  constructed  the  piers  at  Chi- 
cago and  opened  the  harbor.  This  was  done  by  cutting  a 
channel  through  this  sand  bar  in  an  easterly  direction  across 
it  and  where  the  river  was  passing  out  when  the  lands  were 
surveyed  in  1820  or  1821,  and  where,  by  the  survey  and  plat 
made  thereupon,  the  mouth  of  the  river  is  located,  and  where 
the  courses  and  distances  of  the  survey  locate  it,  and  where, 
at  different  times,  from  1811  up  to  1833,  the  river  had,  at  va- 
rious times,  passed  out  after  making  for  itself  a  passage,  or 
aided  by  some  little  help  of  man  by  a  trench  across  it  with 
shovels. 

If  the  title  relates  back  only  to  the  act  of  Congress,  then 
the  survey,  plan  in  Surveyor  General's  office,  description  in 
the  patent,  and  the  river  in  its  mouth,  all  correspond  and 
agree  exactly  together  as  they  did  in  1820  or  1821,  when  the 
lands  were  surveyed  and  the  government  plans  or  maps  were 
made, — and  there  can  be  no  question  in  the  case.  The  pre- 


11 

emptor  took  bounded  by  the  river.  If  it  related  back  to  the 
entry,  then  if  this  sand  bar  was  a  part  of  the  north  fraction 
the  government,  by  that  act  of  Congress,  must  be  held  to 
have  conveyed  away  all  the  government  works  and  harbor 
constructed  by  it. 

The  Harbor  was  built  in  1833-4.  The  channel  was  opened 
through  where  it  now  is  and  has  ever  since  been,  in  Marchj 
1834,  and  the  permanent  mouth  or  entrance  to  the  harbor 
there  established.  The  piers  were  in  after  years  extended 
perhaps  one  thousand  feet  out  into  the  lake.  The  effect  of 
this  was  to  interrupt  the  downward  current  on  the  shore  of 
the  lake,  turn  it  a  little  from  the  shore  and  prevent  the  drift- 
ing sands  from  depositing  upon  the  shore  below  the  pier,  as 
they  had  formerly  done.  The  current  striking  against  the 
pier  was  of  course,  at  that  point,  to  some  extent  arrested  and 
caused  to  strike  out  into  the  lake  a  little,  below  the  piers. 
The  consequence  was  a  deposit  of  the  drifting  sand  on  the 
north  side  of  the  pier,  where  many  acres  have  been  made, 
until  the  angle  between  the  pier  and  shore  was  full;  when, 
there  being  a  curved  shore  formed  in  that  angle,  the  water  or 
current  passes  along  more  easily  and  without  eddies  by  the 
end  of  the  piers,  but  still  turned  from  the  shore  south,  and  is 
depositing  its  sands  south  of  and  forming  a  new  sand  bar 
across  the  present  mouth  of  the  river,  and  stretching  south  a 
mile  or  more,  and  nearly  but  not  quite  parallel  to  the  old 
one,  which  was  upon  the  site  in  question.  The  prevailing 
winds  are  from  the  north-east,  and  the  waves  strike  the  whole 
western  shore  of  Lake  Michigan  in  a  quartering  or  angling 
manner,  and  are,  for  a  hundred  and  fifty  miles  north  and  south 
of  Chicago,  gradually  encroaching  upon  and  wearing  away  the 
land.  The  drift  of  sand  being  stopped  by  the  piers  and  turned 
outside  the  old  bar,  the  supply  which  before  had  been  constant, 
and  enabled  it  to  maintain  its  battle  with  the  waves  by  addi- 
tions of  new  material  as  fast  as  it  wore  away,  was  cut  off  and 
turned  elsewhere — the  action  of  the  waves  continued,  and 


12 

every  particle  of  sand  they  carried  away  was  lost,  with  no* 
new  acquisitions.  The  consequence  was,  the  old  bar  south  of 
the  piers  was  gradually  worn  away,  and  in  three  or  four 
years  disappeared  beneath  the  waters.  It  had  never  been 
more  than  about  eighteen  inches  high.  It  disappeared  be- 
neath the  surface  of  the  water  in  1836-7,  but  it  was  several 
years  before  the  mass  was  washed  away  so  that  the  lake  ac- 
quired there  its  full  depths,  ranging  from  four  feet  near  the 
piers  to  ten  feet  at  the  southern  line  of  the  section,  near  a 
half  a  mile  below.  In  1836  it  mainly  went  under  water 
gradually  and  imperceptibly,  as  the  jury  find.  The  water 
there  became  deep,  and  was  for  many  years  an  open  road- 
stead for  rafts,  boats  and  vessels.  It  remained  so  from  1836 
to  1852,  abandoned  by  all  claimants,  and  forgotten.  The 
Railway  Company  located  its  depot  there,  filled  it  up  and 
expended  $2,000,000  of  money  there.  In  1857,  twenty  years 
after  its  disappearance,  the  plaintiff  goes  and  buys  up  the 
claims  which  the  pre-emptor  of  the  north  fraction  might  have 
to  it  as  a  part  of  that  fraction  for  a  small  sum,  and  brings 
this  suit. 

Now  the  question  is — admitting  in  this  place  that  it  once 
belonged  to  the  north  side — did  the  title  wash  away  with  the 
sands  which  composed  the  bar  ?  If  lands  wash  away  by  the 
gradual  and  imperceptible  action  of  water,  does  the  title  to 
the  locus  remain  f  Does  it  make  any  difference  that  the  place 
where  the  land  once  had  been  can  be  accurately  identified  ? 
Does  it  make  any  difference  that  the  artificial  construction  of 
the  piers  by  the  government  acting  upon  the  current  in  the 
manner  above  described  had  an  agency  in  causing  it  to  wash 
away? 

That  the  general  rule  of  law  is  that  where,  by  the  gradual 
and  imperceptible  action  of  the  waters  land  is  worn  away 
the  title  goes  with  it;  and  where  in  the  same  manner  land  is 
gradually  added  the  title  spreads  over  it  is  indisputable,  and 
is  established  by  many  striking  cases;  and  the  reason  as- 


13 

signed  in  the  Books  is  that  the  party  owning  on  the  water  is 
subject  to  the  contingencies  there,  and  being  liable  to  lose 
and  having  a  chance  of  gain,  the  one  is  a  compensation  for 
the  other,  and  his  title  shall  be  good  to  the  accretion  because  he 
is  liable  to  lose  his  title  to  the  land  worn  away.  This  princi- 
ple is  stated  by  the  Supreme  Court  of  the  United '  States, 
McLean  giving  the  opinion  thus: 

"The  question  is  well  settled  at  common  law  that  the  per- 
"  son  whose  land  is  bounded  by  a  stream  of  water  which 
"  changes  its  course  gradually  by  alluvial  formation  shall 
"  still  hold  by  the  same  boundary,  including  the  accumulated 
"  soil ;  no  other  rule  can  be  applied  on  just  principles.  Every 
"  proprietor  whose  land  is  thus  bounded  is  subject  to  loss  by 
"the  same  means  which  may  add  to  his  territory,  and  as  he 
"  is  without  remedy  for  his  loss  in  this  way,  he  cannot  be 
"  held  accountable  for  his  gain." 

10  Peters,  717. 


This,  it  will  be  noticed,  is  stated  by  the  Supreme  Court  of 
the  United  States  as  the  well  settled  rule  of  the  common  law, 
and  the  reason  given  is  a  common  law  reason.  The  doctrine, 
however,  was  taken  from  the  civil  law,  and  was  incorporated 
into  the  common  law  in  and  subsequent  to  Bracton's  time, 
who  copied  into  his  work  on  the  Law  of  England  as  being 
the  law  of  England,  the  paragraphs  in  the  Institutes  upon 
the  subject  word  for  word  and  comma  for  comma,  as  the  cases 
cited  by  me  below  show,  and  ever  since  his  time  has  been 
unquestioned  law. 

See 

Angel  on  Tide  Waters,  257-8,  note  266,  9,  255,  256. 
Angel  on  Water  Courses,  43, 53. 

2  Black.  Com.,  262-3. 

3  Barn.  <fe  C.,  80,  91. 

4  Barn.  &  C.,  485. 

5  Meeson  &  W.,  327. 

18  Louisiana.  122,  and  arguments  of  Counsel  there. 
10  E.  C.  L.,  50,  670. 


14 

9  Conn.,  38 

1  Gro.,  321. 

8  Pothier,  1 79. 
Puff.,  5tfi. 
Vattel,  183-4-5. 

2  .lohn.,  322. 

3  Kent,  429;  n. 

9  Cusb.,  444. 
23  Vert,  319. 
19  Barb.,  492-3. 

3  Marten,  33. 116,  83,  91,  131-2-3-4-5-9. 
Justinian,  lib.  2,  tille  1.  sec.  20. 

Hale  De  Jure  Maris,  28,  31,  35. 

4  Mason,  349. 
11  Ohio,  311. 
18  How.,  157. 


The  case  in  5  Meeson  &  Wellsby,  327,  was  one  where  land 
had  been  washed  away  at  the  month  of  the  Humber.  A 
railway  came  along  and  was  located  there  between  high  and 
low  water  marks,  and  it  condemned  the  land  and  paid  the 
money  into  court.  The  water  having  worn  away  the  land, 
and  the  ocean  having  gained  a  foot-hold  there,  and  the  bed 
of  the  ocean  belonging  to  the  Crown,  the  question  was  to 
whom  the  money  should  be  paid;  whether  to  the  Crown  or 
to  the  former  owner  of  the  land  where  the  road  was  located. 
The  question  on  one  side,  in  favor  of  the  owner,  was  ably 
discussed,  but  the  counsel  for  the  Crown  were  stopped,  the 
Court  thinking  the  case  too  clear  for  argument,  and  ordered 
the  money  to  the  Crown.  The  case  and  the  arguments  of 
counsel  are  worthy  of  especial  notice,  as  are  all  the  cases  in 
the  English  Books,  especially  the  cases  in  10  and  15  English 
Common  Law,  and  in  4  Mason,  349,  and  the  Louisiana 
Cases. 

All  the  cases  and  books  state  that  accretion  and  decretion 
by  action  of  water  are  governed  by  exactly  the  same  rules — 
the  one  is  exactly  the  reverse  of  the  other.  What  is  gradu- 
ally worn  away  from  land  the  owner  loses.  What  is  gradu- 
ally taken  from  the  water  by  accretion  to  land  the  public, 
which  is  the  owner  of  the  bed  of  navigable  waters,  loses. 


15 

The  cases  are  governed  by  the  same  principles  throughout. 
Vattel,  183-4-5,  and  all  the  books  passim. 

There  can  be  no  doubt  of  the  principle,  therefore,  and  the 
only  thing  to  inquire  about  is  whether  there  be  any  exception 
to  this  rule,  and  whether  this  case  comes  under  the  exception. 

The  position  taken  by  the  plaintiff  is:  First,  That  the  pre- 
cise extent  of  the  sand  bar  above  water  can  be  ascertained 
and  determined,  and  that  when  this  can  be  done  the  owner 
does  not  lose  his  title  if  the  land  wears  away,  because  his 
land  can  always  be  identified  and  the  extent  known.  For 
this  position  he  relies  upon  a  paragraph  in  the  first  chapter 
of  Lord  Hale's  Treatise,  saying  that  where  there  be  left  any 
thing  to  determine  the  extent  of  land,  as  stakes  or  stones,  the 
owner  shall  not  lose  his  land;  and  a  case  in  the  Year  Books 
is  cited,  and  Dyer,  328. 

It  will  be  found,  upon  examination,  that  there  are  cases 
where  water  has  invaded  the  land  and  then  retired  or  been 
driven  back,  and  the  question  has  been  who  was  entitled  to 
the  land  from  which  the  water  had  retired — the  Crown  or 
former  owner, — and  the  decisions  have  been  that  where  the 
land  marks  remain — stakes,  stones  or  other  boundaries,  the 
the  former  owner  should  be  entitled.  These  cases  are  clearly 
right.  They  are  manifestly  cases  of  inundation  and  not  cases 
where  water  has  worn  away  the  land  by  gradual  and  imper- 
ceptible action. 

There  are  several  distinct  classes  of  cases:  Gradual  accre- 
tion to  land;  gradual  washing  away  of  land,  which  is  accre- 
tion to  the  extent  and  domains  of  water;  reliction  of  land  by 
water,  which  is  where  the  water  suddenly  retires  from  the 
shore,  leaving  a  large  tract  of  the  bed  of  the  ocean  bare  and 
dry;  and  inundation,  which  is  the  reverse  of  reliction,  where 
the  sea,  for  some  reason,  suddenly  invades  the  land  and 
spreads  over  a  large  surface.  In  these  latter  cases  neither  of 
them  is  the  title  affected,  and  in  both  cases  it  is  for  the  same  rea- 
son. The  change  is  sudden — the  surface  of  the  land  is  not  chan- 


16 

gad  or  worn  off — which  is  the  reason  given  by  Justinian  why 
the  owner  does  not  lose  his  land  by  inundation. 

Institutes  by  Oooper,  lib.  2,  title  1,  sec.  24. 


These  sudden  changes  occur  on  the  coasts  of  England, 
where  many  of  the  manors  extend  to  low  water  marks,  and 
where  there  is  a  wide  extent  of  marsh  or  flat  land  on  the  bor- 
der of  the  ocean.  The  manors  having  been  granted  to  low 
water  mark  and  this  marsh  land  enclosed  by  a  dike  to  keep 
the  water  out  at  high  tides,  sometimes  these  dikes  are  bro- 
ken down  by  the  waves,  and  the  water  spreads  over  them, 
and  sometimes  is  permitted  to  remain  a  long  time,  and  the 
question  has  arisen  whether  such  lands  belong  to  the  Crown, 
and  it  has  been  uniformly  held  not,  and  properly,  according 
to  the  principles  of  law.  Yet,  as  Lord  Hale  has  no  distinct 
chapter  on  inundations,  but  has  put  these  cases  under  other 
heads,  there  is  a  little  confusion,  apparently,  in  his  book, 
whereas  these  cases  are  rightly  decided.  They  are  not,  how- 
ever, at  all,  cases  of  accretion  or  gradual  washing  away,  and 
no  confusion  can  arise  except  in  the  minds  of  those  who 
look  at  these  passages  in  his  books  and  disregard  all  the  rest 
of  it.  (See  pages  28,  31,  35.) 

The  case  where  a  party  was  permitted  to  reclaim,  after  40 
years,  was  of  this  sort,  and  the  case  where  the  heir  at  law 
appealed  to  Parliament,  against  the  Bishop,  is  clearly  an- 
other similar  case,  as  is  evident  from  the  words  of  Hale  him- 
self. (See  page  .) 

And  no  case  can  be  found  where  there  has  been  a  gradual 
accretion  or  a  gradual  wearing  away  of  land,  where  it  has 
not  been  held  that  the  water  has  always  been  the  boundary 
of  the  title;  that  the  title  of  the  owner  of  the  land  extends 
as  his  land  imperceptibly  gains,  or  recedes  as  the  land  recedes 
by  wearing  away.  See 

10  E.  C.  L.,  50,  670. 


17 

5  Meeson  <fe  W.,  327. 

3  B.  &  C  ,  80. 

4  B.  &  C.,  485. 

3  Martin,  33,  <fec.,  <fec. 


There  is  a  remarkable  case  cited  in  the  argument  of  Liv- 
ingston, in  this  last  case,  and  stated  also  in  the  opinion  of  the 
court,  taken  from  the  Pandects.  It  is  as  follows:  Titus  had 
a  field,  and  between  him  and  the  river  there  was  first  a  high- 
way then  a  field  of  Attius,  and  then  the  river,  bounding 
Attius'  land.  The  river  gradually  wore  away  the  whole  of 
the  field  of  Attius,  then  the  road,  and  then  began  to  wear 
the  field  of  Titus,  who  became  riparian  owner.  The  river 
then  began  to  retire,  gradually  re-forming  the  land — first 
gradually  making  by  alluvion  the  space  where  the  highway 
was,  then  the  space  where  Attius'  field  was,  until  it  got  back 
to  its  old  bed.  Then  the  question  arose  between  Attius  and 
Titns  as  to  the  ownership  of  the  land  where  Attius  had  owned 
the  field.  It  was  decided  that,  as  his  field  wore  away,  his 
title  was  gone;  and  that  Titus,  having  become  riparian  owner, 
with  the  risks  of  that  sort  of  ownership,  he  was  entitled  to 
its  chances,  and  that  he  was  the  owner  of  the  space  where 
formerly  Attius'  field  had  been. 

3  Martin,  33,  83,91,  <fcc. 


Here  there  was  no  dispute  about  the  extent  of  land — that 
was  precise  and  definite,  and  easily  ascertained.  Did  that 
make  any  difference  in  the  principle  ?  The  rule  is  that  the 
riparian  owner  is  entitled  to  riparian  privileges  in  compen- 
sation for  his  disadvantages.  If  the  front  owner  allows  his 
land  to  wear  away  without  defending  it,  and  the  water 
reaches  the  next  owner,  then  that  owner  becomes  the  riparian 


18 

owner,  subject  to  hazard  as  such,  and  consequently  to  the 
privileges. 

In  this  present  case  it  so  happened  that  when  the  sand  bar 
had  about  half  disappeared  by  the  action  of  the  waters  it 
was  surveyed  and  a  plat  made -of  it;  and  because  this  chanced 
to  be  done — and  by  the  order  of  the  Government  Surveyor 
General — and  the  plat  thereof,  and  the  courses  and  distances 
preserved  in  the  Government  archives,  therefore  the  law  of 
riparian  rights  ceased.  The  party  c«';n  identify  where  his 
land  was,  and  therefore  it  can  never  wear  away  so  that  he 
will  lose  his  title.  His  risk  in  that  respect  has  ceased.  If 
that  be  so,  and  his  boundaries  cannot  be  diminished,  then 
the  reverse  of  the  rule  could  not  apply  to  him,  and  if  there 
be  imperceptible  accretion,  he  could  not  be  entitled  to  them. 
It  amounts  to  this:  that  where  there  has  been  a  survey,-there 
the  law  does  not  apply.  They  have  caught  one  of  the  forms 
which  this  changing  sand  bar  has  assumed,  and  therefore  it 
can  never  change  any  more.  With  as  much  propriety  rni'ght 
they  say  that  because  they  have  daguerreotyped  a  man  in 
middle  age  and  got  his  features,  that,  from  thenceforth,  the 
law  of  nature  for  him  shall  be  suspended — time  shall  cease 
to  produce  its  effects  upon  him;  he  shall  cojitinue  to  exist  in 
perennial  manhood.  I  do  not  think  this  point  is  really  wor- 
thy of  argument. 

I  deem  it  very  clear  that  the  fact  that  the  extent  of  land 
may  be  identified,  where  it  has  worn  away,  does  not  change 
the  law.  If  that  were  the  case,  a  man  might  have  his  land 
on  the  border  of  the  river  surveyed  and  a  map  of  it  made, 
and  by  so  doing  he  could  avoid  the  hazard  of  riparian  own- 
ership; and  yel,  if  there  should  be  an  accretion,  reap  all  the 
advantages.  He  might  follow  a  changing  river  upon  all 
western  waters,  as  it  retired  and  wore  away  the  opposite 
shore,  until  he  had  acquired  the  title  to  land  and  farms  which 
formerly  were  on  the  other  side,  but  could  not  lose  his,  should 
the  river  go  the  other  way.  Indeed  the  law  would  be  wholly 


done  away  with  on  all  our  western  waters,  where  every  stream 
has  been  surveyed,  and  the  exact  extent  and  boundaries  of 
every  lot  marked  and  mapped  and  placed  in  the  general  land 
office,  at  Washington,  as  a  perpetual  record.  The  law  would 
have  been  done  away  with  by  the  surveys  under  the  Con- 
queror, which  are  recorded  in  the  Doomsday  Book,  by  which 
the  extent  of  every  manor  and  the  boundary  on  every  river 
of  that  day  can  be  determined  by  courses  and  distances.  In 
other  words,  that  law  could  not  be  law  which  could  be  altered, 
changed  or  suspended  by  any  individual  who  chose  to  sur- 
vey his  land.  I  deem  this  position  simply  absurd. 

Then,  does  the  fact  that  the  construction  of  the  pier  was  a 
co-operating  cause  of  this  sand  bar  washing  away  alter  the 
principle  of  law  or  create  an  exception  ? 

In  order  to  estimate  properly,  and  decide  this  question,  it 
may  be  well  to  examine  the  reasons  upon  which  the  law  rela- 
tive to  riparian  rights  of  accretion,  &c.,  is  founded.  It  is 
said  by  the  Roman  law  to  be  a  principle  of  natural  law,  that 
he  who  is  subject  to  the  risks  shall  have  the  chances  of  gain ; 
and  it  is  equally  so  that  he  who  has  the  chances  of  the  gain 
shall  be  subject  to  the  risks  of  loss.  This  is  the  reason 
always  given  why  a  man  loses  his  title  where  his  land  wears 
away  by  the  action  of  navigable  waters,  and  why  his  title 
extends  as  his  laud  extends  by  accretion.  See 

18  Louisiana,  pages  131,  132,  134,  154,  166,  172,  228, 

245.  and  258. 

3  Martin,  Louisiana,  122, 125,  126. 
Puffendorf,  188. 
1  Urotius,  138,  321. 


And  this  reason  has  been  fully  adopted  by  the  common 
law. 

2  Black's  Comm.,  262-3. 

10  Peters.  717. 

Hale  De  Jure  Maris,  28,  29. 

15  E.  Com.  Law,  524. 

10  E.  C.  L.,  53,  and  argument  of  counsel  there. 


20 

2  John  R..  322. 

3  Kent,  429,  n. 
9  Conn.,  42. 


Now,  the  government  pier  was  built  under  the  exercise  of 
sovereign  power.  It  was  one  of  those  acts  which  are  the 
same  in  the  eye  of  the  law,  as  would  be  the  eifect  of  an  earth- 
quake, or  any  other  convulsion,  which  might  have  thrown  up 
there  an  impediment  to  the  usual  currents  of  water.  It  is  to 
be,  and  must  be,  in  the  nature  of  things  perpetual,  as  much 
so  as  the  necessity  which  called  it  into  existence,  viz.:  the  com- 
merce of  the  lakes  yet  in  its  infancy,  and  which  will  exist  as 
long  as  the  lakes  themselves.  Here  then  is  a  work  erected  by 
the  government — in  its  necessity  perpetual — artificial  to  be 
sure,  but  which  must  always  be  maintained. 

The  argument  is,  that  because  the  sovereign  power  of 
the  country  placed  it  there,  and  not  the  sovereign  power  of 
the  universe,  that,  therefore,  all  the  laws  relative  to  riparian 
rights  in  the  vicinity  are  changed,  that  the  man  who  is  ex- 
posed to  the  risk  of  ha  ving  his  soil  worn  away,  shall  not  have  the 
chances  of  accretion  made  to  it,  that  he  who  may  be  bene- 
fited shall  not  incur  the  hazard  of  a  loss. 

At  the  time  the  pier  was  built  the  same  party,  according 
to  the  position  of  the  plaintiff,  owned  the  lake  shore  for  a 
half  a  mile  north  and  a  mile  south  of  it  The  chances  both 
on  the  north  and  south  were  his,  as  a  result  he  gained  on  the 
north  and  lost  on  the  south.  The  piers  were  built  there  with 
his  consent  and  approbation,  and  he  held  his  land  with  its 
chances  of  benefits  and  hazards  of  losses. 

But  let  us  look  further.  If  the  construction  of  this  pier 
suspended  the  ordinary  principles  of  law  in  the  vicinity  of 
it,  and  the  riparian  owners  there  were  not  entitled  to  the 
privileges  of  riparian  owners,  by  what  law  were  their  rights 
regulated,  and  how  far  north  and  how  far  south  did  the  new 


21 

substituted  law  extend.  This  west  shore  current  extended 
south  and  around  the  south  end  of  the  lake.  When  did  the 
effect  of  the  pier  upon  it  cease  ?  Where  did  the  new  and 
substituted  law  cease  ;  and  when  and  at  what  point  did  the 
old  law  resume  its  dominion? 

Again  the  land  owners  south  of  the  pier,  as  well  as  north 
of  it,  were  bounded  by  water.  What  were  those  rights  on 
that  water?  They  were  subject  to  its  action,  their  land  was 
liable  to  wear  away,  and  if  it  should  happen  to  increase 
should  it  become  theirs?  As  it  resulted,  south  it  was  more 
likely  to  wear  away.  Was  not  the  right  to  any  possible  gain 
strengthened  upon  the  principles  of  law  ?  Suppose  the  re- 
sult had  been  accretion  on  both  sides  north  and  south — as  if 
left  to  itself  would  be  the  case  in  time — the  new  bar  would 
form  at  the  outer  end  of  the  pier,  and  in  time  would  come 
to  the  surface  and  stretch  well  down  the  shore.  The  inner 
shore  would  thus  be  protected  again  from  the  sea,  and  the 
gradual  deposits  of  the  river,  which  would  naturally  fall  upon 
the  western  or  inner  side  where  the  water  would  be  still, 
would  gradually  extend  the  shore  out  until  only  a  space 
should  again  be  left  sufficient  for  the  passage  of  the  waters 
of  the  river.  Would  not  the  riparian  proprietors  be  entitled 
to  the  accretion  so  made  ?  The  first  effect  of  such  an  artifi- 
cial construction  as  this  pier  may  be  one  thing, — the  perma- 
nent effect  of  it,  when  the  results  are  fully  developed 
running  through  a  course  of  ages,  might  be  different.  The 
position  is  by  the  counsel  on  the  other  side,  that  before  its 
effect  shall  be  fully  known  a  principle  shall  be  laid  down  by 
the  court,  as  if  ages  had  worked  out  the  results  and  they 
were  complete,  and  when  time  shall  have  passed,  and  the 
permanent  results  are  very  different  from  the  immediate 
ones,  it  may  be  found  that  the  decision  has  been  based  upon 
the  beginnings  instead  of  results. 

Again,  when  in  process  of  time  this  sand  bar  had  washed 
away,  which  stretched  for  a  mile  down  the  lake  shore  and 


22 

formed  a  barrier  to  protect  the  main  land  from  the  action  of 
the  sea  and  waves  of  the  lake,  and  when  the  city  lots  and 
property  on  the  main  shore,  in  consequence,  was  attacked 
by  the  waves  of  the  lake,  driven  in  by  furious  storms,  what 
became  the  rights  of  those  owners.  They  were  then  brought 
face  to  face  with  the  enemy — the  lake — and  commenced 
a  battle  with  it  which  lasted  seventeen  years  with  vari- 
ous success,  and  until  the  wall  built  by  the  Illinois  Cen- 
tral to  shut  out  the  waters.  In  the  meantime  a  single  owner 
had  been  compelled  to  expend  $3,000  in  a  single  year  to  pro- 
tect his  lot  against  the  fury  of  the  lake,  and  all  the  proprie- 
tors, including  the  city,  in  the  incessant  warfare,  had  been 
compelled  to  tax  themselves  and  expend  many  thousands, 
and  for  many  years  to  protect  their  property,  which  had  for- 
merly been  protected  by  that  bar. 

Now,  how  long  would  they  be  compelled  to  do  this  before 
they  became  entitled  to  the  precarious  privileges  of  riparian 
owners  upon  a  tempestuous  sea?  Would  it  be  by  five,  ten, 
twenty,  fifty,  or  a  hundred  years,  or  an  indefinite  length  of 
time  ?  Are  they  not  subject  to  the  risks  of  riparian  owners, 
and  does  not  that  give  them  the  rights,  and  if  it  gives  them 
the  rights  what  are  they?  Are  they  not  the  right  of  free  in- 
gress and  egress  to  the  lake  for  all  purposes,  that  right  to 
any  accretion  which  possible  changes  of  the  currents,  or 
winds,  or  time,  may  bring  to  them  ?  To  have  the  lake  kept 
open,  to  have  their  lots  bounded  upon  it,  so  that  none  could 
get  between  them  and  it?  How  long,  I  say,  would  they  be 
compelled  to  defend  themselves  against  their  enemy  the  lake 
before  they  would  be  entitled  to  their  rights  ? 

Can  the  sovereign  power  maintain  that  pier  there  a  thou- 
sand years,  and  the  riparian  owners,  made  so  by  the  owners 
of  the  sand  bar  neglecting  to  defend  it  and  allowing  it  to 
wear  away,  remain  in  contest  with  the  lake  generation  after 
generation  and  at  large  expense,  and  at  the  end  of  any  num- 
ber of  generations,  when  riparian  rights  have  become  more 


23 

valuable,  then  be  cut  off  by  the  descendants  of  Kinzee,  or 
Bates,  going  into  the  lake  and  cutting  them  off  from  it  by 
re-building  this  sand  bar  between  them  and  it  ? 

I  take  it  upon  principle  this  cannot  be  law.  The  owners 
of  the  sand  bar  might  have  defended  it  if  they  deemed  it 
worth  while,  but  they  could  not  lay  by — allow  it  to  wear 
away — throw  the  burden  of  the  contest  on  those  behind  them, 
and  then  after  a  long  time  come  in  and  say  that  all  the  laws, 
regulating  the  rights  of  parties  bounded  by  the  water,  were 
there  suspended  and  abrogated,  and  repossess  themselves  of  the 
place  where  the  sand  bar  was.  Much  less  can  they,  when 
under  the  authority  of  the  Legislature,  and  by  a  purchase  of 
all  the  riparian  rights  a  company  has  filled  up  the  lake  there 
and  expended  $2,000,000,  being  more  than  its  actual  value, 
come  in  and  claim  that  they  have  owned  it  all  the  time.  As 
soon  as  by  action  of  the  waters  it  had  by  imperceptible  de- 
grees worn  away,  and  those  in  the  rear  had  become  riparian 
owners,  they  became  entitled  to  all  the  rights,  as  they  were 
subject  to  all  the  hazards,  of  such  owners. 

As  upon  principle  no  case  could  be,  so  no  case  can  be 
found  to  the  contrary,  and  so  far  as  there  are  decisions  on  the 
point  they  sustain  the  positions  I  lay  down. 

In  the  15  E.  C.  L.  is  a  case,  though  not  in  point,  yet  in 
principle,  I  think,  sustaining  me.  It  decides,  that  the  con- 
struction of  artificial  works  on  the  coast  to  protect  one  man's 
land  against  the  sea,  by  means  of  which  the  sea  is  thrown 
with  greater  violence  against  another  man's  land,  and  wore 
it  away,  was  not  the  just  ground  for  an  action,  and  that  no 
wrong  could  be  done  to  one  by  another's  defending  himself. 

15  E.  C.  L.,  179. 


This  was  upon  the  ground,  that  the  man   defending  his 
land  did  it  rightfully,  and  was  not  responsible  for  conse- 


24 

quences.  The  government  of  course  built  the  pier  rightfully, 
and  moreover  with  the  consent  of  the  owner  of  this  bar,  if 
it  was  ever  owned  by  him,  and  for  a  great  public  purpose, 
and  from  the  very  object  of  it,  it  must  be  a  perpetual  work, 
as  perpetual  as  commerce.  In  the  exercise  of  a  right,  if  it 
-\rae  no  wrong  to  any  body,  how  can  it  alter  the  rights  of  any 

-  relative  to  any  property  they  mnv  have. 
But  the  very  Question  lias  been  decided  in  Massachusetts 
and  in  a  case  which  turned  upon  the  precise  point,  and  in 
favor  of  the  principles  I  maintain,  and  if  that  case  be  law  it 
is  decisive. 

See  3  M.TS8.,  352> 


There  the  question  was  as  to  the  property  in  lands  formed 
by  the  accretion,  and  the  position  was  taken,  that  the  accre- 
tion was  caused  by  the  erection  of  a  wharf  into  the  river, 
which  caused  a  deposit  by  the  water  by  reason  of  a  change 
in  the  current.  The  court  said  that  it  did  not  think  much  of 
the  position,  and  that  it  mattered  not  whether  the  accretion 
was  wholly  by  natural,  or  partly  by  natural, and  partly  by  ar- 
tificial, means. 

This  is  the  only  authoritive  case  directly  on  the  point, 
though  the  reason  upon  which  the  law  is  based,  and  all  its 
principles,  tend  to  that  direction. 

So  much  for  the  general  question,  and  I  think  it  a  clear 
one.  There  is  a  special  question  as  to  land  formed  under 
'the  lee  of  the  pier  in  front  of  land  owned  by  the  govern- 
ment, about  two  hundred  feet  in  length;  this  accretion  ex- 
tended across  the  old  bed  of  the  river,  and  would  occupy  a 
small  space  where  the  sand  bar  had  formerly  been.  It  was 
formed  by  accretion  during  a  space  of  fifteen  years.  The 
peculiarity  as  to  this  is,  that  it  formed  in  front  of  the  land  of 
the  government  occupied  as  an  hospital.  The  government 


built  the  pier.  The  consequence  was,  the  old  sand  bar  wore 
away,  accretion  formed  in  front  of  main  shore  on  land  of 
government.  Does  any  diiferent  rule  apply  to  this  than  to 
lands  owned  by  individuals  ?  Can  the  government  who  built 
the  pier,  the  remote  consequence  of  which  was  accretion  in 
front  of  its  own  land,  claim  the  accretion,  and  sell  it?  It  is 
the  case  above  cited  from  the  .Roman  law,  with  the  additional 
element,  that  the  remote  cause  of  the  accretion  was  created 
by  the  owner  of  the  land  upon  which  the  accretion  formed. 
There  is  no  decision  on  this  point,  though  it  is  alluded  to 
in  a  case  by  a  judge  in  New  York. 

4  Smith's  Court  of  Appeals,  151. 


Upon  the  best  consideration  I  have  been  able  to  give  to  it, 
the  title  to  this  accretion  will  rest  upon  the  same  principle 
as  would  that  which  formed  upon  the  next  lot  belonging  to  a 
private  owner.  I  can  see  no  reason  for  any  distinction.  All 
my  reasoning  above  applies  as  well  to  that  land  as  to  the 
rest,  and  I  think  it  must  be  governed  by  the  same  rule. 

JAMES  F.  JOY. 


